Flora Logging Co. v. Boeing, 10922.
| Decision Date | 07 July 1930 |
| Docket Number | No. 10922.,10922. |
| Citation | 43 F.2d 145 |
| Parties | FLORA LOGGING CO. v. BOEING et ux. |
| Court | U.S. District Court — District of Oregon |
Veazie & Veazie, of Portland, Or., for plaintiff.
Platt, Platt, Fales, Smith & Black, of Portland, Or., for defendants.
The Flora Logging Company, a corporation who owns a large tract of timberlands in the state of Oregon, brings this suit to condemn a right of way for a logging railroad across unimproved timberland of the defendant Boeing. It is engaged in the business of logging, and is compelled to and does maintain and operate a logging railroad for the transportation of logs and other raw products of the forest from points where the same are cut to a connection with a common carrier railroad.
Some of its timberlands adjoin those of the defendant on the north, east, and west, and some are situated westerly and southwesterly therefrom. As defendant's land lies in a natural pass in a mountain range which constitutes the main watershed of the region, it appears necessary for plaintiff to go through and transport its timber and timber products over it, as no other route is feasible.
The right to condemn such a right of way is challenged by defendant's demurrer upon the grounds: (a) That the condemnation sought is for a private use and not for public purposes; and (b) that it does not appear that the power of eminent domain is enumerated in the charter of the corporate powers of the plaintiff.
When, in disposing of the two objections made, we are confronted with the primary question, Do the provisions of the Constitution and statutes of Oregon, as construed by its highest court, offend against the Fourteenth Amendment to the Constitution? The determination of this inquiry by the courts has been influenced by the diversity of local conditions and respect for the judgments of the state courts upon what should be public uses in conformity with their laws, and the cases show greatly that the federal courts have deferred to the opinions of the state courts on the subject. Clark v. Nash, 198 U. S. 361, 25 S. Ct. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171; Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 26 S. Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174; Ruddock v. Bloedel Donovan Lumber Mills (C. C. A.) 28 F.(2d) 684, 685.
The development of the Oregon law discloses that its Constitution and statutes bearing upon the subject have been changed often, and it becomes necessary to trace the steps taken by its people and Legislature in order to determine whether at the time the present suit was instituted right was given to an owner of timberland to condemn a right of way over the lands of another to give access to and remove his timber.
The constitutional provision of the state until 1920 provided: Constitution of Oregon, art. 1, § 18.
This provision was first amended in 1920 to read: Section 18, article 1, as amended (see Laws Or. 1921, p. 5).
And again in 1924 a further amendment to section 18, article 1, of the state Constitution was adopted, which provides: See Laws Or. 1925, p. 5.
The provisions of the statute and decisions of the state court until 1921 denied the right to condemn a right of way by one for private uses over lands of another for the transportation of timber. Apex Transportation Co. v. Garbade, 32 Or. 582, 52 P. 573, 54 P. 367, 882, 62 L. R. A. 513; Anderson v. Smith-Powers Logging Co., 71 Or. 276, 139 P. 736, L. R. A. 1916B, 1089.
Until the amendment to the Constitution of 1920 was adopted, the Supreme Court of the state in the Smith-Powers Case held that it was necessary to change their Constitution relating to the taking of property for private uses, and thus followed the adoption of the 1920 amendment, which, under the act of the Legislature of 1921, plaintiff urges grants to it the right to condemn the right of way sought. The act of the Legislature of 1921 relates to "the condemnation of lands for logging railways, roads, or ways, necessary or convenient to promote the transportation or removal of raw products of the forest," and section 2 thereof, in express language, grants to any person or corporation the right to acquire lands necessary for logging roads or way to promote the transportation of logs or raw products of the forests and to condemn so much thereof as necessary for such logging railroad, road, or way, and section 7 of the act provides that "any logging road which is necessary for the transportation of a single tract of timber shall come within the provisions of this act, whether same be a common carrier or otherwise, and such road shall not come under the jurisdiction of the public service commission of this state unless the owners thereof shall declare it a common carrier." Laws Or. 1921, p. 690.
Attention is called to the cases of Smith v. Cameron, 106 Or. 1, 210 P. 716, 722, 27 A. L. R. 510, and...
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Moore Mill & Lumber Co. v. Foster
...of the county wherein the lands are located. No land shall be taken until compensation has been assessed and tendered.' Flora Logging Co. v. Boeing, D.C., 43 F.2d 145, sustained the validity of the act just quoted against a charge that it violated the due process clause of the federal const......
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...of property without due process of law. Cf. Ruddock v. Bloedel Donovan Lumber Mills, 28 F.2d 684 (9th Cir. 1928); Flora Logging Co. v. Boeing, 43 F.2d 145 (D.Or.1930). No case has been brought to our attention, nor have we found one, in which the United States Supreme Court has resolved the......
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